Legal aspects of the attribution at the OPCW - P.R. OF RUSSIA TO THE OPCW
Permanent Representation of the Russian Federation to the Organization for the Prohibition of Chemical Weapons (OPCW) is working in The Hague (the Kingdom of the Netherlands) on a permanent basis. It is involved in consultation with the Technical Secretariat of the OPCW, other delegations, and on behalf of the Russian Federation participates in the activities conducted by Organization, and provides connection between Technical Secretariat and Russian National Authority (Ministry of Industry and Trade of Russia) responsible for implementing the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction.
Sessions of policy-making organs of the OPCW are held on a regular basis throughout the year: there are three sessions of the Executive Council and one session of Conference of the State-Parties at the end of a year. Russian Permanent Representation to the OPCW informs Ministry of Foreign Affairs of Russia about developments in discussions on current issues during informal consultations conducted in the intercessional period and supports Russian delegations which come to take part in the work of the policy-making organs.
Ambassador, Permanent Representative to the OPCW - H.E. Mr. Alexander V. SHULGIN
Deputy Permanent Representative to the OPCW - Mr. Igor S. VISHNEVETSKY
Legal aspects of the attribution at the OPCW
The Russian Federation considered carefully the Draft Decision of the United Kingdom of Great Britain and Northern Ireland for the forthcoming special session of the Conference of the States Parties to be held on 26-28 June 2018 entitled “Addressing the Threat from Chemical Weapons Use” (C-SS-4/DEC/CRP/1 of 13 June 2018) and regrets to state that such a proposal creates grave concerns.
The Russian side reiterates its position that the initiative to empower the OPCW with the function to “identify those who were perpetrators, organisers, sponsors or otherwise involved in the use of chemical weapons”, one it is brought into effect, not only will fail to strengthen the regime of the Chemical Weapons Convention (CWC) but also it will lead, on the contrary, to a number of injurious consequences of political, legal, technical and administrative character which will endanger its existence on the whole.
The CWC does not contain any provision that the Organisation or its policy-making organs have the mandate to establish a violation of an obligation under the Convention. The fulfillment of obligations of the States Parties to preclude development, production, acquisition, stockpiling, retaining, use of chemical weapons as well as assisting, encouraging or inducing of such an activity (Article I of the CWC) is ensured through bona fide implementation of a number of purely technical arrangements. The Convention contains detailed provisions which regulate interaction between the OPCW and the States Parties while implementing such arrangements.
In view of the aforesaid the OPCW was conceived as and remains a purely technical organisation. Such understanding is reflected, inter alia, in the documents of the Third Review Conference in 2013 where it was clearly stipulated that the OPCW is a “global repository of knowledge and expertise with regard to chemical weapons disarmament, the verification of their non-possession and non-use, and their destruction” (RC-3/3).
The instruments conceived by the authors of the CWC to eliminate and to prevent any possible violation of the Convention are stipulated directly in the text of this international treaty. In particular, investigation upon requests of the States Parties for assistance and protection against chemical weapons is provided for in Article X of the CWC, fact-finding is set forth in Article IX of the CWC. The procedural aspects of investigations in cases of alleged use of chemical weapons are clearly defined in Part XI of the Verification Annex to the CWC. At the same time investigation of activities prohibited under the Convention as well as criminal prosecution for such wrongful acts is entrusted directly to the States Parties (Article VII of the CWC).
In order to ensure observance of the provisions of the Convention and to settle any possible contradictions and disputes arising thereof the CWC prescribes the States Parties to proceed with consultations and cooperation among themselves and between them on the one side and the OPCW on the other side. Such procedures in theory and in practice are the core elements of the activity of the Organisation.
International organisations unlike States do not possess universal legal personality and therefor they are subjects of international law with a special status. It means that international organisations have the right to act only within the mandate clearly stipulated in their founding documents (international treaties).
In the situation under consideration, according to travaux préparatoires of the CWC, while negotiating the draft of the Convention any provisions which might have been interpreted as entrusting the organs of the OPCW or the Organisation itself with attributive powers were on purpose excluded from the draft text or/and reformulated accordingly.
In light of the above-stated the Russian side proceeds from the understanding that attributive function goes beyond the mandate of the OPCW and thus the decision to create such a mechanism within the Organisation or to entrust the Technical Secretariat with such a function cannot be made at the special session of the Conference of the States Parties. Creation of attributive mechanism within the OPCW can be legitimate only through adoption of a relevant amendment to the CWC as it is provided for in Article XV of the Convention.
The Russian Federation finds it appropriate to remind in this context that establishing those responsible for a wrongful act is one of the elements of the responsibility procedure in international law. The latter is in its turn an act of coercion (law enforcement). At the present time the only body entitled to take coercive (enforcement) measures in regard of States, apart from competent international courts, is the United Nations Security Council. Any measures of this nature imposed by international organisations which do not possess such rights should be regarded as illegal interference in internal affairs of a State.
The Russian side is convinced that should the OPCW be entrusted with such attributive functions in violation of provisions of the CWC it will inevitably create a detrimental precedent which can damage the credibility of this Organisation as well as of the system of international organisations and of international law and order on the whole.